Appeals panel sides with CBS over Super Bowl fine

FILE - In this Feb. 1, 2004 file photo, singers Justin Timberlake and Janet Jackson are seen during their performance prior to a wardrobe malfunction during the half time performance at Super Bowl XXXVIII in Houston. A federal appeals court ruled Wednesday, Nov. 2, 2011 that CBS should not be fined

/ AP

FILE - In this Feb. 1, 2004 file photo, singers Justin Timberlake and Janet Jackson are seen during their performance prior to a wardrobe malfunction during the half time performance at Super Bowl XXXVIII in Houston. A federal appeals court ruled Wednesday, Nov. 2, 2011 that CBS should not be fined $550,000 for Janet Jackson's infamous “wardrobe malfunction.” (AP Photo/David Phillip, file)

FILE - In this Feb. 1, 2004 file photo, singers Justin Timberlake and Janet Jackson are seen during their performance prior to a wardrobe malfunction during the half time performance at Super Bowl XXXVIII in Houston. A federal appeals court ruled Wednesday, Nov. 2, 2011 that CBS should not be fined $550,000 for Janet Jackson's infamous “wardrobe malfunction.” (AP Photo/David Phillip, file) (/ AP)

MARYCLAIRE DALE, Associated Press

In the latest court battle over the steamy 2004 Super Bowl halftime show, a federal appeals court ruled Wednesday that CBS should not be fined $550,000 for Janet Jackson's infamous "wardrobe malfunction."

The 3rd Circuit Court of Appeals held its ground even after the U.S. Supreme Court ordered a review in light of the high court's ruling in a related Fox television case. In that case, it said the Federal Communications Commission could threaten fines over the use of even a single curse word uttered on live TV.

But Circuit Judge Marjorie Rendell said the Fox case only "fortifies our opinion" that the FCC was wrong to fine CBS over the halftime show.

The three-judge panel reviewed three decades of FCC rulings and concluded the agency was changing its policy, without warning, by fining CBS for fleeting nudity.

"An agency may not apply a policy to penalize conduct that occurred before the policy was announced," Rendell wrote.

CBS argues that the FCC had previously applied the same decency standards to words and images - and excused fleeting instances of both.

Rendell said that long-standing policy appeared to change without notice in March 2004 - a month after the act at the Super Bowl, held in Houston.

The ruling involved rock star Bono's use of profanity on the Golden Globe Awards show the prior year. An FCC enforcement bureau had called it a fleeting, non-sexual utterance and declined to issue a fine. The full commission reversed the ruling in March 2004 but declined to issue a fine because it would have been allowed under the prior standard.

Rendell sees the same issue at play in the Janet Jackson case.

"The same logic implies that the FCC erred in imposing a fine on CBS in this case, as the chronology of events that are the subject of these cases demonstrates," she wrote.

CBS said it was grateful for the decision.

"We are hopeful that this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades," the network said in a statement.

The FCC said that it was disappointed by the ruling and that the court overturned the fine on "narrow procedural grounds."

"The FCC will continue to use all of the authority at its disposal to ensure that the nation's broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves," a spokesman said.

The 3rd Circuit panel had been unanimous in its 2008 ruling. But Judge Anthony Scirica reversed himself after the Supreme Court's Fox ruling, issuing a dissent Wednesday that said CBS could be fined if the FCC finds the network knew about the alleged stunt.

The FCC argues that Jackson's choreographer had suggested that something might be up. During the act, Justin Timberlake ripped off Jackson's bustier, exposing her breast for nine-sixteenths of a second. It was explained away as a "wardrobe malfunction," a term that has since become part of the lexicon.

"There were considerable alarm bells about deviating from the script," FCC lawyer Jacob Lewis argued before the 3rd Circuit last year. "CBS had a duty to investigate."

The panel ruled in 2008 that the FCC had "arbitrarily and capriciously departed from its prior policy," and reached the same conclusion Wednesday.

A law firm that represents the Center for Creative Voices - a coalition of producers, writers and directors - and filed an amicus brief in support of CBS said the ruling is less critical to the industry as a whole than it was in 2008.

"It was a big fine for CBS, so that matters, but because the Supreme Court is looking at the constitutionality of the FCC policy itself, this ruling is much less significant than it was ... the first time they ruled," said Andrew Jay Schwartzman, senior vice president and policy director of the law firm, the Media Access Project.